What's the Solution For Cape Hatteras National Seashore?

What's the correct image of ORV use at Cape Hatteras National Seashore, the top photo, taken by A. Pitt, or the bottom photo used by the Southern Environmental Law Center?

The spit of sand that buffers the North Carolina coast from the worst the Atlantic Ocean can toss at it carries an array of contentious issues that seemingly have no easy answers. Foremost among the issues at Cape Hatteras National Seashore these days is the use of off-road vehicles to negotiate beaches that are either far from parking lots or which are just far enough from those lots to make it difficult to carry all your gear for a weekend fishing trip.

Cape Hatteras, authorized as America's first national seashore in 1937 but not actually established until 1953, is a beach lover's jewel. The heart of North Carolina's Outer Banks, the cape offers some of the best beaches in the country, is renowned for its surf fishing, has some of the East Coast's best waves for surfing, and has a decided tinge of wildness that is a welcome respite from the Mid-Atlantic's metropolitan areas.

Off-road vehicles long have been allowed on the national seashore. Unfortunately, the seashore hasn't had a formal off-road management plan in place, and that's why discussions centered on Cape Hatteras often grow heated.

The hot button is the fact that the cape's beaches and dunes attract wildlife: of late much has been made of the nesting shorebirds and sea turtles and whether off-road vehicles are impacting them. The divisions over that question are well-defined. Perhaps no topic other than guns in the parks illicits as many comments to the Traveler as ORVs and Cape Hatteras.

Are ORVs out of control, as the lower photo used by the Southern Environmental Law Center might suggest, or does the top photo provided by A. Pitt better capture ORV use on the cape?

Mr. Pitt has been visiting the cape since 1972 and owns land in Frisco that provides him and his family a welcome escape from their Richmond, Virginia, home. He's well-versed on the ongoing dispute surrounding ORVs on Cape Hatteras; since April he's written hundreds of members of Congress to try provide an ORVer's viewpoint of the ongoing debate and to question points raised by Defenders of Wildlife and the National Audubon Society, the two groups who, through the Southern Environmental Law Center, sued the National Park Service for its failure to develop an ORV management plan for the national seashore.

The lawsuit was settled earlier this year when all involved signed a consent decree that was designed to provide short-term management of ORV and pedestrian traffic in shorebird and sea turtle habitat while a long-term plan is developed. Unfortunately, not everyone is thrilled with the consent decree's provisions. Anglers and families that long have used ORVs to reach their favorite spots on the seashore complain that the decree is too restrictive and over-reaching.

What's important for all to remember is not only that ORVs long have been permitted at the national seashore and more than likely will continue to be allowed access in some fashion, but also that there is wildlife habitat on the seashore that needs protection because it is utilized by species protected under the Endangered Species Act.

"I have a vested interest in the area," says Mr Pitt. "It's truly my paradise! Most of the folks who speak out on this issue are fishermen/women. I speak out for beach access for any reason, whether it be fishing, surfing, or just sitting there playing Parcheesi.

" ... I support BOTH species protection AND ORV access, as do most beach users in this area," adds Mr. Pitt. "I truly believe that they can both be attained, if the 'eco' groups will indeed negotiate in good faith."

To some, "ORV" is a pejorative, a word that equates with four-wheelers charging willy-nilly across the landscape. Is that the case at Cape Hatteras, or are the "ORVs" there more likely to be pickup trucks and SUVs their owners use to reach beaches that otherwise would take walks ranging from perhaps a half-mile to nearly 5 miles to reach?

As the attached map shows, there are quite a few ORV and pedestrian restrictions between May 15 and September 15 to protect shorebird and sea turtle nesting habitat. Are those restrictions excessive? There certainly are hard opinions on both sides of that question.

While that question will continue to generate heated comments, let's hope all those involved will arrive at an acceptable solution through the National Park Service's long-term ORV management plan and not insist on a legislated solution from Washington.

AttachmentSize
CAHA-ORV Map.pdf1.31 MB

Comments

Customary and Traditional Uses and Rights

An aspect of the issue of vehicles on the beaches of Cape Hatteras & environs that is at times overshadowed by other arguments, is that this is a 'customary & traditional' pattern of usage. People started doing this soon as cars came along. I expect the archives will yield photos of Model T Fords lined up on the sand, not unlike today's SUVs. They may well have done the same with horses & buggies, before Ford!

Does that history of usage 'count' or 'matter', or not?

Certainly, the words 'customary' and 'traditional' have significant legal import these days. We hear phrases made up of those words often, especially regarding Native Peoples. Such language is familiar to the public, and is well-understood.

Does the consideration of customary & traditional factors apply only to Aboriginal Peoples, and is it facetious to claim 'tradition' for internal combustion propelled machines?

The answer to both those question is No.

The famous case of subsistence in Alaska, including (but not limited to) Parks, is explicitly not race-based. The practice of subsistence (based on customary & traditional usage) applies equally to all residents of a region where it occurs. The "preference" is for rural residency, people who live in the regions where the traditions were practiced (newcomers 'inherit' the rights of a region). Subsistence is not a right of Indians, withheld from White folks. On the contrary, approximately half of subsistence activity is by non-Natives, and half by Tribal members.

In Alaska, machines including ATVs are recognized as traditional and customary. Airplanes, outboard motors, nylon fish nets, and most of modern equipage, are likewise fully qualified as traditional & customary. Machines have the same basic history in Alaska as anywhere else.

Some people are inclined to object that Alaska is a 'special case', and that what goes on there has no meaning or impact in the conterminous States. However, what is really different about events in Alaska is simply that they are the most recent of our large-scale National trends. They should be viewed as harbingers of legal & social things to come, rather than as anomalies or sub-arctic aberrations. (Alaska should be view as - gulp! - the next California!)

The accurate way to view what has happened in Alaska is not that it is a 'special' resolution that applies only in some far-off and atypical place - but rather that it embodies the most recent - and future - evolution of Federal law & jurisdiction ... some parts of which will increasingly be expressed & applied in regions & cases beyond the Alaska scene.

The solid & established reality is, 'customary & traditional' does count - and includes practices on Cape Hatteras. Furthermore, there are many other cases across the United States where customs & traditions have been deprecated. Some of those abrogations will most likely hold permanently, but in other cases the legitimacy of claims to now-suppressed patterns of usage will be brought forward and reexamined to determined whether a "right" of usage had been established, and if so, some may be permitted & protected in the future.

Indeed, the handling of the controversy at Cape Hatteras suggests that it is being managed as potential precedent for the address of customary & traditional practices elsewhere.

Does custom & tradition mean bird & turtle nests don't warrant protection? No more than bird & turtle nests mean that established usage ought to be stopped. Neither is legitimately a weapon against the other.

Unfortunately, environmental rules are used more and more frequently to achieve goals that have less to do with protecting animals and are simply another tool in the activists arsenal to stop an undesirable outcome (in their opinion) that they were unable to prevent using other means.

A good case in point is the use of the Endangered Species Act to thwart development of privately owned land in southern Utah on behalf of prairie dogs which some government wildlife biologists have deemed a "threatened species". In most cases the prairie dog is nothing more than a political football used as a last gasp measure to prevent unwanted "sprawl" or commercial development when all other means of prevention have been exhausted. The end result of this so-called "protection" is that local people have begun to kill any and all critters that even look remotely similar to a prairie dog on their property out of a very real fear that the government will deprive them of their private property rights on behalf of a rodent. The end result is wanton slaughter of a creature the law was designed to protect.

Far from endangered the Utah prairie dog is thriving amidst the new development and if you want to see some firsthand they have a huge colony on the cloverleaf of I-15 in Cedar City (Exit #59).

I think the use of plover nesting grounds on Cape Hatteras is a similar ploy to achieve what can't be done through honest negotiations. I've never been bothered by the vehicles on the Cape and don't think the turtles or plovers have been either.

As my time as a Senior volunteer at a National Park has taught me "Mitigation funding" is something you come to both love and hate, and thanks to the current adminstration the NPS's increasing reliance on it has become a serious problem.

Lonehiker,

Thanks for the agreement on the fishing issue. The state of NC indeed has both salt and fresh water fishing license requirements, as well as min.-max. size limits per species. The money collected from these fees goes to good uses throughout the state.

The area of the highest contention in this issue is the ‘”Cape Point” to “South Beach” areas that run from Buxton to Frisco, NC. These areas lie between 2 access ramps over the dunes that are numbered 44 to the North and 49 to the south of the “Point”.

This part of the barrier island is the largest landmass in the whole chain. The only highway in the area departs from the Atlantic seaboard at Buxton, and closely follows the opposite coast along the Pamlico Sound. There simply are no hard surface roads in the area at all, with the exception of the two roads that lead to aforementioned ramps.

As you stated, you have not been to the OBX in some time, although I can find no reference to the “Jam” period. That being the case, please go to this website, provided by the CHNSRA NPS and ‘Google Earth”:
http://www.nps.gov/caha/planyourvisit/googleearthmap.htm

The ramps are numbered as I have indicated for easy reference. Please look at the large wilderness area known as “Buxton Woods” that borders the entire Cape Point/South Beach seaboard. Note the total lack of buildings and/or roads. Note the relative distances from road ends to beachfront. Now take into account that the sand is more like deep snow than hardpack. Also consider that the sand reaches temperatures well over 100 degrees F on a typical sunny summer day. A hike from the closest parking area to the point would be a tough job for a marine, much less a family with young children. There are no public showers, no public areas in which to house lockers as you suggest. Any and all structures near the coastline are subject to destruction from storms that range from Nor’ Easters all winter and spring to Hurricanes most of the summer and fall. Any infrastructure required by your suggestions would be swept into the sea again and again.

Once the barrier island leaves the point area, it becomes quite narrow again, many times just a few hundred feet wide. In these areas, public parking is provided at occasional “turnouts”, and wooden walkovers are employed for beach access. These areas are far and few between, however, and would not work for the Cape area proper.

As to the amount of education we Beach Access proponents possess about these matters, especially in relation to the species in question would surprise you. If there has been one good thing, in my opinion, to come out of the mess that is the Consent Decree, is that we are ALL much, much more learned about birds and turtles and their conservation.

However, I will state that the ORV/Fishing/Beach Access public has been talked down to by just about every one on the other side of this issue since day one, and you sir, continue in that same vein. Do not dare to question the intelligence and comprehension abilities of these folks. If they can read and discern what is relevant in all the legal documentation concerning the Consent Decree, as well as the original NPS charters and such, then they can do as well with scientific biological reports. Most of these same people are not fishermen by vocation, it’s just what they love to do away from their jobs. They are employed in every faction of the working world imaginable. Please do not add the insult of being called uneducated to the injury of these folks already losing their access rights to their favorite places in this country.

No one wants to cause harm to any of the species in question. We just ask that a democratic approach be taken in these matters, and that public opinion AND peer-reviewed science come into play. To say that the Audobon Society and the Defenders of Wildlife are the one and ONLY authorities on species conservation is absurd. Yet their mandates are exactly what is running the CHNSRA today. They simply refuse cross examination and sue if they find their way to their means blocked. That, Sir, should bother you as well.

The Interim Plan that was killed by the Consent Decree was making great strides in species protection, and numbers were on the increase due to it. On that basis alone, the SELC could not have sued. However, they found the “chink in the armor” in the guise of the NPS/DOI’s failure to submit their “Final” ORV/Species management plan for 30+ years. There, our government officials failed us big time, and allowed for all that we are currently discussing to ensue. Had the final plan been in place for years, I sincerely believe we would not be having this discussion. I also firmly believe that ALL species, including humans, would be flourishing on these beaches, ORV’s and all.

As I sat on South Beach last weekend, watching my nearly 2 year old son frolic in the sand and surf, a thought came to me. I realized exactly what it is that makes this area so special to me and thousands of others: It’s place where the common man, through no more means than owning a 4WD vehicle, can provide for his family beachfront living that is usually only available to the very wealthy, if just for the day.

Lastly, let’s just suppose it were indeed possible to make the hike to the point while laden with fishing gear and all sustenance needed for a family of three just for the day, using good packing techniques as you suggest.

You might just find a sign in your way, once there, excluding pedestrians as well.

Chris,

Your quote:

"As my time as a Senior volunteer at a National Park has taught me "Mitigation funding" is something you come to both love and hate, and thanks to the current adminstration the NPS's increasing reliance on it has become a serious problem."

Can you please explain what you know about this situation? That's new terminology to me, and I would like to know how it might come into play in the CHNSRA issue. Thanks in advance!

****************************************

Beamis, You hit that nail on the head, Sir.

The Piping Plover's Southernmost summer range is, you guessed it, Southern N.C.! They are more a northern bird, and are apparently prolific in the Cape Cod area, as well as parts of the Great Lakes shorelines, and the Canadian Maritimes. They are sadly being used as a "Poster Child", or political football, as you put it, in this game we now play. They have a very hard time making it on the Cape against nature alone. Overwash, storms, and predation all have a larger impact on their ability to survive than humans and ORV's will ever have. Predation is actually UP this year due to the lack of humans to scare them away! Therefore, the NPS is now either trapping and "relocating" or outright killing predator species including Foxes, Muskrats, Nutria, Opposum, Feral Cats and Dogs, and Raccoons, just to name a few. Some are "relocated" into a dumpster at Ramp 44. Does this border on playing God? I certainly believe it does.

I've heard of similar situations to the Prairie Dog issue you brought up. Apparenty the same thing is happening with Osprey nesting in trees along privately owned waterfront property, where landowners are clearcutting trees along the shoreline to prevent nesting. If an Osprey does indeed nest, the property owner cannot build any structures that nesting year or the next, as the birds must be allowed the ability to renest the following season per EPA rules. This, and your example as well, are but a few instances where these wacky rules are actually hurting the species that they set out to protect.

Ah, GoogleEarth, one of my favorite new toys of the past 5 years!!!

First a most needed clarification. As noted in my initial post, I most certainly was not inferring any regional illiteracy exists, whether selectively unique to this issue or in any other manner. But I don't agree with the "if A, then B" theory pertaining to an ability to sort out legal briefs beings the equivalent to proper dissection of scientific publications. The major difference between the two is the rendering of credibility through the use of multiple citations in scientific publications, generally referencing specific previous findings; some hypothetical, some theoretical, some accepted laws or postulates. Without prior knowledge of the entirety of those works, dissemination of the final data sets supported / contradicted within any given paper is difficult at best, impossible at worst. True, legal decrees often site "State vs. So-and-So" as a precedent for a finding or opinion. These are most always far more limited in number than in the typical sci-publication, as legal briefs tend more toward a legal outcome, while publications in science are intended to present findings as a piece of evidence, similar in scope to supporting / denying a small piece of a 1000+ puzzle. More often than not these findings are first subjected to internal professional review by a committee comprised of disciplines both pertinent to and different from the group who conducted the study (alleged to be more objective than simple "peer review") and then by external forces who in many cases have a "pro or con" ax to grind regarding the inferences of those data. Comprehension of these papers in nothing as simple or enjoyable as sitting down with Beowulf of The Iliad. It's more akin to finding the true author's intent in biblical verses. Often, the interpretation of these data are variable from reader to reader, or from reading to reading, and it takes quite literally dozens and dozens of attempts at various papers to begin to be able to grasp the overall scientific process; understand the scope of the experimental design, determine validity of such, determine if methods, controls, instrumentation and general "lab" conditions were properly controlled and maintained throughout the study, check to see if graphs, charts and calculations are accurate representations of data or otherwise manipulated to, intentionally or not, falsify data.......the list is quite complex. It's not as easy as turning to the "conclusions" section of the paper and seeing what the author(s) have to say about their study. If only..........

In addition, back to my post, I wasn't claiming that the simple proposals were the only acceptable options. Obviously, without a detailed survey and a few competent CE's, the structures that could be acceptable and their locations are completely arbitrary suggestions on my part. The suggestion, as put forth by someone, of placing them directly over existing nesting grounds was foolish and emotionally charged, and not the least bit objective. Neither am I supporting any "enviro" group's stance and itinerary by intent. These groups have political agendas with which I do not stand in allegiance, period. If my "lame" notions have been previously discussed and dismissed, through political pandering, objective studies, or whatever the case, so be it. Sorry to bother you, it won't happen again. But at least try and maintain some objectivity in your long-term plans, as did I, and realize that two sides working to achieve a suitable solution stands a better chance at success than two sides dug in and fortifying the trenches.

Back to some intelligent and insightful references by dapster, I fear the "democratic process" as it pertains to this issue is being clouded by too much disinformation from both sides. While I personally don't own an ORV, I can't say that I've never utilized them from time to time either. I find the pollution issues raised by some as dubious fabrications, but at the same time, vehicle owners being what we are, I'll willing to bet that some oil-leakers have made it out to the beaches. Probably a vast minority, however, but allowing for the use of the "broad brush" stereotyping by the opposition. I submit I am not in possession of the ideal compromise, but at this moment in time I doubt one exists. If as you say, back in the days of my last visit, the "proper" paperwork had been on file, this discussion would be mute.

Funny you should mention the snow / sand metaphor. I've trekked through both; gimme the sand, anytime. True story about the difficulty for the kids though. They prefer to fall in drifting snow banks, for sure. I always found the heated soil motivation to keep myself moving at a brisk pace! But I no more favor the preservation of your local migrants over humans in the OBX than I favor elimination of bald eagle nesting grounds from an island in the Mississippi River to build a condo complex 100 miles SW of Chicago, so that those who purchase the condos can boat upriver to commuter train stations to help alleviate interstate highway congestion. Am I an over-the-edge environmentalist? I believe not, but I tend not towards the first idea placed in my lap, either.

Beamis, I think the doggie colony is partial to the dumpsters behind the Wendy's on the SE corner.

Good stuff dapster and beamis. Very well put. It's funny how the folks that want you off your beaches stop talking when the truth about the critters starts coming up. But, I guess they don't really care about the critters in the first place.

Kurt, thank you for this forum and your article on this issue

I'd also like to remind everyone that the consent decree is illegal.

As JohnAB put it, "the law is the law". The National Environmental Policy Act (NEPA) is also a law. One thing it requires is public comment periods when new or updated environmental policy is proposed. The consent decree is new environmental policy for CHNSRA. It replaced the Interim Species Management Plan for CHNSRA. The Interim Species Management Plan followed the NEPA process. The consent decree did not. A few entities coming up with an agreement called a consent decree is hardly public comment. Therefore it is illegal. I think everyone should be able to agree on that.

Lone Hiker,

Thank you for your kind words, and also in taking the time to look at Google Earth in relation to this issue. It certainly is a wonderful tool! I hope that a flyover of the area gave you and other readers a better understanding of the logistical complexities that all possible access related options face on this part of the island.

Yes, you did disclaim yourself as to not “Dissing” (sp?) anyone as to their intellect in your original post, but many others have not been so kind in the past. The pro access folks really have taken a verbal beating over this issue, and have been called everything from rednecks to fish-lip-rippers. I only took up that issue out of respect for their hard work in attempting to educate themselves and others to better understand what’s going on and why. I surely meant no offense. I get emotionally charged over this issue daily as well, and have to continually remind myself to remain objective. Otherwise, I get “all wound up” too. Not so easy to do, sometimes!

I agree with your statement concerning peer review/professional committee review of data. There have been many independent studies of the area made. The SELC et al choose to rely on their own data, and simply will not compromise. The Reg-Neg board is apparently at a standstill due to the SELC’s unwavering demands for even MORE beach closures than the consent decree provides. Many of these closures would be year-round and permanent. Here’s a quote from the “Island Free Press” that details what’s happening in that arena:

“Negotiated rulemaking has become increasingly contentious and polarized as the two major stakeholder groups have put their requirements on the table. Also playing into the process is the consent decree that became effective April 30 to settle a lawsuit against the National Park Service over ORV regulation. The groups that sued have a seat at the table, and beach access groups feel increasingly that the “victory” of the environmental groups with the consent decree gives them little motivation to compromise.

Cape Hatteras National Seashore Superintendent Mike Murray has asked the Department of the Interior to evaluate whether, considering the increased polarization, negotiated rulemaking process should be pursued for seashore ORV rulemaking.”

There’s even been talk about bringing Federal Environmental mediators in to help sort things out. That might be the only way to keep it moving forward, or it could make matters worse. I also think that it is way too early in the study of this decree for the SELC to claim “Victory”. For them to state that a one-summer snapshot is adequate enough time to complete a study of this magnitude is insanity. Next year’s numbers on species AND economic/tourism impacts will tell the true tale. Tourists with reservations already made for this year could not change their plans, even if they were lucky enough to know anything about it before arriving on the island. Next year, they will be aware and may choose to vacation elsewhere.

Your comment about entrenchment is absolutely accurate on both sides. The pro access folks, myself included, feel that they have had this whole issue shoved down their throats, especially since there was no public comment allowed or even requested. The Consent Decree, while agreed to by both sides, was basically a “Gun to the head” of the pro-access groups. NOT signing it would have resulted in TOTAL beach closures for the 3-year decree timeline, and quite possibly forever. However, the Eco groups have used this in their favor inferring that “Well, you guys went along with it, so what’s your beef now?”. I believe that to be a terrible injustice, and just plain immoral. There is a great and very realistic fear that if we do not fight as hard as possible, with every means available, that we will simply be steamrolled over and the entire area will become another NWR, and the villages will be turned into ghost towns. Independent mediation of some sort may be the only way to end the warfare, though I fear that option as well.

There has been some debate as to just what NOT signing would have produced. Many believe that total closures would have brought about a counter-suit and/or more national attention, and that the decree would have been reversed. Others have stated that the judge at the center of this, (Federal Judge Terrance Boyle), has one of the lowest reversal rates around, and to be overturned would not be a possibility. Personally, I won’t take a stand on either side of that issue, as I was not present in the meetings that lead to this, and will not try to second guess their wisdom. While I have not been happy about the amount of areas closed and which areas were closed, I have been pleased to have at lease SOME access this summer. For this I thank them for signing. No access would be truly heartbreaking…

I don’t have the solution for this issue either. I wish I did. I firmly believe that a compromise can be reached that would allow both ORV access as well as serious species conservation.

Whether or not that compromise WILL be reached is another matter.

As Dave Vachet posted, the Consent Decree is certainly illegal. The biggest hope of Congressional Bill # HR6233/S3113 is that the illegality of the decree will be seen through the smoke-screen of half truths and fuzzy data the Mr. Derb Carter of the SELC has already put into public record during a recent Senate Subcomitte meeting on this bill. Thanks for your nice comments as well, Dave. It is indeed funny how some run for the bushes once science, logic, and truth appear on the scene.

Thanks again to Kurt, and all of you that have taken the time read about and/or comment on this very important issue!

dap

I decided to respond since I was the one that used sarcasm to make my point on putting lockers at the point is a bad idea and after going into shock after seeing the response by LONE HIKER.

First let me state Lone hiker you are correct as Dapster has stated we have tended lately to be more of a shoot from the hip kind of group. I want to say that anyone put in the position of losing something special to a group that when faced with facts holds their hands over their ears and screams to avoid losing ignorance as a defense. I want to also state we do need to work together and if both sides understood the situation as you and Dapster we wouldn't be here.

I noticed no one is mentioning that this latest attempt in closing the beaches was one of many that has happened. With this one partially succeeding only because they chose to loophole through the system by using ORV managament and Piping Plovers as "Political Footballs" (I really liked that one). These people will stop at nothing. The have tried and lost many times before and they will not win this time either.

As far as the last paragraph by Lone hiker, I would prefer snow. As a person who lived in both upper and lower Michigan with access to the beach and the snow (though more of the later) I know you can always throw on another layer. Though at the beach you take off too much and you start to offend. The trick is know that line before you cross it.

"Fish lip rippers"? Now I've heard everything........that's the best someone could invent? Sounds more cartoon than derogatory.

Closing the beaches is an obvious attempt, in my view, of headline grabbing and stirring up emotion amongst the "all access" side of the debate, a thinly shrouded and poorly conceived notion that by, in essence, pissing off the locals and completely trashing the local economy, movement can be expedited on one side or the other. This, I grant you, is the view from a comfortable distance, and may or may not be totally accurate. But since I have no vested interest in the program, per se, maybe I'm being overly simplistic in my assessment of the situation. But I admit to taking umbrage with ANY "political football" that people try and simplify into the "Enviros vs. Human Progress" issue. Too convenient, too simplistic, and WAY too inaccurate in ALL cases. All emotion and limited substance is a poor way for EITHER side to affect the desired result. I, in all honestly, wish you well with achieving a resolution that both /all parties deem acceptable. But I certainly wouldn't be holding my breath if I was on EITHER side of this debate. I smell a protracted legal battle about to ensue. As if what's currently happening isn't protracted enough!

Folks I messed up my grammer, so I edited it. It was originally posted earlier in the day before the posting above.

Sorry

Dapster

Chris,

Your quote:

"As my time as a Senior volunteer at a National Park has taught me "Mitigation funding" is something you come to both love and hate, and thanks to the current adminstration the NPS's increasing reliance on it has become a serious problem."

Can you please explain what you know about this situation? That's new terminology to me, and I would like to know how it might come into play in the CHNSRA issue. Thanks in advance!


Mitigation funding is when a park get funding from a corporation to offset any environmently or any other damage they have done to a park because of their actions. For example, an oil company drills or drilled for oil near a National Park and to help Mitigate their past or future damage give the park MILLIONS OF DOLLARS. Now just think how this how this can become a problem.

LH,

The "Lip Rippers" moniker is my personal favorite too. Classic! I have seen it in print on other sites, believe it or not. This thread contained some similar sentiments, as I know you are aware.

Your albiet distant view is quite accurate, I must say. I would also agree with your "simplistic" comment, but I think that the posts on this thread by those of us painfully close to the issue have helped to clarify the situation, and show just how hard an area this is to manage due simply to geography.

Thanks for your sympathies for our cause. I believe as you do, that this battle is far from over. I do not wish to see it tied up in courts, but would rather see a more democratic process be allowed to settle this affair. We’ll just have to wait and see on that, while breathing normally. Good advice there!

Chris,

Thanks for the excellent description of “Mitigation Funding”. I’ve never heard of it coming into play in the NPS areas that I frequent. I can clearly see how that could indeed become a huge problem. Kind of sounds like an area could be “bought/hushed up”, for the right amount of money.

In the CHNSRA, I’m afraid it’s all about “Litigation” funding these days….

Thanks again to you all for your insights. I think we’ve all learned something from this thread. I know I certainly have.

dap

Ted Clayton is explicitly WRONG about ATV's in Alaska.

ATV's ARE NOT considered "customary and traditional" vehicles. The village of Anaktuvuk Pass tried to maintain that their '70's-era ATVs were "customary and traditional", but instead had to trade land with Gates of the Arctic National Park so that the park could protect undamaged tundra valleys and the Nunamiut people of the village could continue to use ATVs. The issue was only provoked because Sec. James Watt unwisely acquired the Native-owned land right around the village to add them to the Park as a cover to permit him to trade away Arctic Wildlife Refuge subsurface land to permit Watt and an oil company to permit a pro-oil development Native Corporation to be able get proprietary oil exploration info within the Refuge. It was a prelude to opening up the Arctic Wildlife Refuge, and Gates of the Arctic park and the people of Anaktuvuk Pass paid the price. The Natives immediately asserted they had "customary and traditional" rights to drive 8-wheeled vehicles on their former lands, as well as the rest of the park. You could clearly distinguish the recent damage from the ATVs from the undamaged areas. Clearly, there was nothing "customary" or "traditional" about it. However, the brilliant argument was uncorked that the Nunamiut people have always been adaptable and creative in the pursuit of the subsistence way of life, therefore, new technology is "customary and traditional."

It did not work. ATV's are not and never were considered to be "customary and traditional" in the national park laws of Alaska.

James R. Pepper,

Thank you for the opportunity to give a more detailed treatment of subsistence practices in Alaska Parks, and other lands.

The use of ATVs (and other motor-driven vehicles) in Alaska Parks by those who hold subsistence rights is widespread (and in some Parks, by recreational users as well), fully authorized ... but also carefully regulated. They are using the machines for specific purposes: they are not permitted everywhere, nor for 'whatever' may strike their fancy. Some places & contexts are off-limits. There are resources & habitats that can't withstand vehicle-usage, and are withdrawn, while in some settings, ATV-movement may be at the discretion of the user. Most commonly, though, ATVs are used on specific trails, and moving off the trail is avoided, to reduce impact.

On the Wrangell-St. Elias Park's All Terrain Vehicles page, we see:

"Wrangell-St. Elias National Park and Preserve was established under the Alaska National Interest Lands Conservation Act (ANILCA) in December 1980. In abidance with ANILCA, Wrangell-St. Elias provides reasonable and feasible access to inholders, subsistence, and recreational users in the park. The most common means of access is by ATV or all-terrain vehicle." (underscore added)

Likewise in the Gates of the Arctic terrain around Anuktuvuk Pass, locals are not free to use ATVs for hill-climbing recreation on the scree-slopes, or other 'free-wheeling' indulgences, and some areas are closed to machines. They generally keep to established paths. Often there is a seasonal consideration: places that can be damaged in the summer, may be open in the winter.

The matter of the responsibilities of ATV-users also raises related issues.

Consistently, about 60% of the subsistence has been fish, in early times as today. In many areas, the main fish has been salmon, but in Alaska as elsewhere, salmon-runs have been down. If wildlife managers find that a run is dropping below safe usage levels, then that resource is withdrawn from subsistence until it rebounds. Similar controls apply to big-game and fur animals. Subsistence users are not permitted to harm the resource, just because they qualify under subsistence provisions.

The main test in specifying subsistence activities, is that they have been "customary & traditional", and ATVs (as well as numerous other machines) are allowed on that basis.

There has been some abuse, misuse, and controversy, but subsistence & access use of ATVs (and in some settings by Park visitors - tourists) is solidly established in Alaska Nat'l Parks.

Access to inholding or private property is a Fifth Amendment right, and should not be confused with access for subsistence.

Thank you, Ted Clayton, for your documentation on the current policy on subsistence access. I have been away from Alaska for quite a while, and believe me it was a settled issue then that ATV's were not "customary and traditional" access.

I was also involved in the development of the original legislation, and although snowmachines were specifically referenced for subsistence and other access, ATVs and aircraft were not contemplated as subsistence access. My opinion is that if authorities or DOI solicitors have reconceived the legislation to permit ATVs, it is a misreading and abuse of the original purpose of the law. However, it appears from your well-documented examples that the authorities have folded to this.

Again, in Gates of the Arctic, the ATVs were first introduced in the 1970's, becoming common only by 1978 or so, or within a year or so of the Gates being added to the NP System (Dec 1978). These were 8-wheeled vehicles. They opened up hunting areas and changed hunting seasons, even changing the mix of animals hunted. None of this was part of any "custom" or "tradition."

I do remember discussions after the establishment of Wrangels about the use of tracked or 4-wheeled drive vehicles as customary and traditional, but it was firmly rejected at the time. Customary and traditional of course, was not meant to relate to mining access, sporting access or access to private property. "Prior use" of these vehicles for these purposes was not the same thing as "customary and traditional" as a cultural expression and part of traditional subsistence in Wrangels or any where else. But the idea that such prior use was customary and traditional was explicitly rejected at that time. I am talking about the mid-'80's.

During the development of the Legislation, subsistence advocates argued that with the technology in common use at that time would not compromise the relatively pristine character of the Alaskan parks because the subsistence hunting would just be replicating the traditional practice with no new impacts. Snowmachines could be considered to have less impact in some respect than dog teams, because hunting was actually reduced because you did not need to feed the dogs. We did have some documented abuses with repeating rifles, but for the most part rifles also would not change the kind of hunting, meaning the species hunted, the normal season and the take. I remember a conversation when someone argued that aircraft should also be permitted for the same reason (that potential aircraft could have less physical impact than truly traditional means of access, and a key Senator finally erupted and would hear none of it. He said: "I know we are talking about culture here, and a mixed economy, which I accept, but no one who can afford to fly in to hunt is a subsistence hunter. That is commercial or sport hunting, period." the same was considered to be true for jeeps or tractors, the ATVs common in Alaska at the time.

I stand corrected by Ted Clayton, although I am not impressed by the administration by park or central office managers for evading their responsibility in the way he has demonstrated. This was never the intent of the "customary and traditional" subsistence access language in the Alaska lands act.

James R. Pepper,

I admire & respect your participation in the great Land Claims Settlement era. It was more historic than many yet realize, and it still continues to unfold.

The Senator who dismissed that well-off people (with airplanes) were appropriate participants in subsistence illustrates another public misconception, and a possible policy-shift in official handling of the subsistence community. An active effort by the State now seeks to dissuade that subsistence is a form of rural welfare. While plenty of individuals involved with subsistence are impoverished, others are quite well-off, and in particular households which may contain low-income persons, combine to provide high-function homes with better-than-typical resources (communications, health, income, transportation, nutrition, education, entertainment, etc).

That is, subsistence is not about 'subsisting' on a meager or marginal plane, but rather is just another pattern of living, particularly well-suited to isolated rural & remote settings. It is in the State's interest, that the people in the hinterlands form competent communities which can take care of themselves, rather than 'subsist' as dysfunctional liabilities. It is now fairly common and certainly normal for reasonably successful rural subsistence participants to own airplanes (and, I think, always was).

Yes, for sure, dog-teams maintained 'on the land' make a far greater impact on the habitat than machine-based transportation. I do not know the circumstances under which the status of ATVs transformed from recent introduction (as you accurately note, they were very new at the beginning of the ANILCA process) to officially 'customary & traditional', but speculatively the dog-argument could have played a role.

I am aware that other fundamental shifts in the enactment of the ANILCA and ANCSA Acts have transpired, beginning at the beginning and proceeding at various points through the years.

In the early years, I did not expect subsistence to survive. It looked like a ruse or ploy, which would fritter away into nothingness. For some time now, it has been evident that I was quite mistaken.

... Again, I believe that these exotic-seeming events & precedents unfolding in seemingly far away & irrelevant Alaska are very much material & meaningful, in the future of policies pertaining to Parks and other public assets throughout the Conterminous States.

James R. Pepper et al,

I gave some thought to the question how the brand-new ATV machines became 'customary & traditional' in the Alaska land-claims process. Speculatively, it would be reasonable that they were ultimately classified as just the most recent 'model' of Off-Road Vehicle, ORV. Ex-military jeeps were prevalent following World War II, and in the pre-war era tracked vehicles - often bulldozers - were the dominant vehicle in the backcountry. Many if not most 'trails' in Alaska were originally created by bulldozers driving cross-country and blading off a rough cat-road as they went. Jeeps and other smaller/lighter machines then followed, and kept the 'roadway' clear.

I could imagine that the argument which prevailed could be, that it is spurious to reexamine each new version or model of a machine used for the same purpose & function. For example, are SUVs on Cape Hatteras any different than Model T Fords lined up on the sand in the 1920s? Or even the horse & buggy of the 1800s?

Functionally, an ATV is just a jeep, etc., but smaller and with a much-lighter 'footprint' on the landscape. ATVs can also be tracked vehicles, corresponding to bulldozers.

I will look for solid documentation of this possible treatment of the ATV tonight & over the weekend.

Mr. Pepper and Mr. Clayton,

Your insightful comments on the "Customary & Traditional" aspect of park management were quite enjoyable and thougt provoking. We on this coast generally know little of Alaska due to proximity. The comment about "exotic events and far away and irrelevant" also aptly describes the situation as it is in the CHNSRA, at least as it began. Very little news reaches the rest of the lower 48 about this area, generally. With the amount of tourism in the area, though, more of the general public from a larger geographic area have become aware. Hence the ever-larger public outcry.

Your descriptions on the "C & T" also may apply to a type of net fishing that is done in CHNSRA. A vehicle, always a pickup truck, brings a net boat to the beach. Said boat is launched into the surf with the net trailing. The net is anchored on the end opposite the boat, and the boat then proceeds to pull the net out into a large semi-circle, arcing back towards shore. The net is then brought up onto shore and the fish retrieved. I’ve seen these fishermen doing this for as long as I’ve been visiting the area. I would assume that this probably was accomplished using horse and buggy at some point in the past. Manually heaving the boat, (reminiscent of the surf boats of the Lifesaving Crews that preceded the Coast Guard), manually would be a chore. I’m sure mechanization was utilized as soon as it was available and practical.

I also agree with this statement:

“For example, are SUVs on Cape Hatteras any different than Model T Fords lined up on the sand in the 1920s? Or even the horse & buggy of the 1800s?”

Before the CC Camps of the Roosevelt era, there simply were no roads on the barrier islands, and all driving was done on the beach from the Virginia Capes to the South end of Hatteras Island. So in my mind there is no difference with respect to mode of transportation utilized. It is also true that the original charter for CHNSRA was written to specifically include beach access for motorized vehicles to the coastline. I don’t recall that there were any stipulations for TYPE of access at that time.

Could these items fall under the customary and traditional heading? Sounds very similar to me. I would very much like to hear your thoughts on this.

dap

dapster,

Oh, what people do on the beaches of Cape Hatteras is 'customary & traditional' alright; the challenge is to 'secure' a legally enforceable right to continue the practices - based on the claim that they are C&T.

Rights-of-way can be won, simply by using a route for a sufficient span of time. After a time, common use of a right-of-way can no longer be stopped, even though there was never any title to the ROW. 'Common use' of a route establishes a legal ROW, all by itself. (That's not part of C&T, but just an example of how a right can be 'secured'.)

Notice in a previous comment, that Wrangell-St. Elias Park (14 million acres, with 2 million acres of private inholder property) provides for inholder-access, subsistence activities, and recreational ATV use, "In abidance with ANILCA ... ". A right is secured, based on a C&T: in this case, by being codified in an Act of Congress.

Another example of the "codification" of C&T is seen in Treaties, such as those the U.S. signed with many Tribes. I believe, though, that the phrase has long been widespread in documents & contracts, aside from dealings with Natives.

The stature & merit of custom & tradition appears to me - anecdotally - to be enjoying a rising social profile, and this could lead to more legal applications.

Governments often seek to minimize the opportunity to make claims based on custom & tradition. France has often been paralyzed, thanks to guarantees extended to secure various customary conditions. The military moves members to new bases frequently, in important part to prevent them becoming too comfortable or too cozy in any one place ... and expecting they can just stay there indefinitely. Bureaucracy is famous for entrenching & fortifying their own customs & traditions.

Therefore, in a situation like Cape Hatteras where the principle object of contention is plainly an established pattern of customs & traditions, it is common that the terms of enactment make no reference to C&T. Instead of focusing discussion on what people are & have long been doing (and how their pattern of usage might be modified, regulated or limited), the focus is instead placed on protecting bird & turtle nests. That way, officialdom "neither confirms nor denies" that anything customary & traditional is at stake. They ignore it.

My intent is not to say that the users of Cape Hatteras are necessarily going to win anything in court by proving their usage is customary & traditional, but rather to point out that although C&T is generally ignored, events in Alaska demonstrate that substantive matters can be and are based on C&T. Major precedents have been established that tie C&T to Nat'l Parks in Alaska.

A great strength of appeals based on customary & traditional practices, is that ordinary citizens can understand the concept & principle of it, intuitively. It is easy to relate & empathize with those who's values & lifestyle are expressed in such customs & traditions.

It is not an accident, that affairs at Cape Hatteras are not address as customary & traditional, even though they obviously are.

Ted Clayton: “customary and traditional” does not provide any rights on the beaches of Hatteras.

I am confused about how you present your case because at times it sounds these are common law rights, at other times, you seem to be saying they are statutory.

You say: "A right is secured, based on a C&T: in this case, by being codified in an Act of Congress."

The rights are not “secured” based on custom. Custom in Alaska informed the Congress, and the Congress then determined what statutory uses would be permitted, subject to reasonable regulation. There was no inherent customary and traditional "right" of access, and no such prior right exists on the beaches of Hatteras.

If the Congress chooses to enact rights of access, it can.

If the Congress chooses to authorize the National Park Service or the Fish and Wildlife Service to manage access via regulation, it can, and has.

James R. Pepper,

I wanted people to see that just because their favored activities on Cape Hatteras are customary & traditional, that does not mean they will be meaningful (much less decisive) in court. So I provided examples.

At the same time, I wanted to counter the general assumption that things customary & traditional are the mark of fuzzy-headed thinking. That C&T is the recourse of whimsical or even whiny folk. Again, I used examples.

Some of these illustrative examples are admittedly less than fully-willing participants in my thesis, but I think they inform us in useful ways even if they are slightly tortured.

Rights-of-way is a useful example, because it underscores the factor of "scope": having the right to use a certain trail has no bearing on other trails or routes in the same area or in other areas. There is no such thing as a "right to movement", which allows us to use whatever route one would like. Rights-of-way are ('have' to be) "established" and they are limited to a specific scope - free movement is not an "entitlement". Customs & traditions likewise have a scope, are established, and are not entitlements.

But the important non-similarity between ROW and C&T, is that C&T cannot be secured under 'common law', as can ROW. To "secure" a C&T practice, it must be recognized 'in writing'. In a Treaty, as part of an Enactment of a duly authorized Agency of the Government (NPS), by Act of Congress, or within contracts between any combination of public & private parties. All of these documents & instruments have been used to recognize - and "codify" - specific customary & traditional practices as rights. But the right exists, only after it's in writing, not just because C&T has been established.

Customs & traditions are almost always "established" informally, in a fashion that parallels common law provisions, but they are "secured" only under formal legal purview.

The precedent in Alaska for the legal recognition of customary & traditional practices does not mean that other cases of C&T are now guaranteed recognition. What has happened in Alaska, though, has certainly added muscularity & stature to customs & traditions as contenders in the legal process. Events & conditions in Alaska make it far easier and more credible, for folks everywhere to look at their own customs & traditions as meaningful players in the social & legal scene.

I agree with James' statement...

"The rights are not "secured" based on custom. Custom in Alaska informed the Congress, and the Congress then determined what statutory uses would be permitted, subject to reasonable regulation. There was no inherent customary and traditional "right" of access, and no such prior right exists on the beaches of Hatteras."
... and I hope my statements in this comment are compatible with his.

Gentlemen,

Thank you both again for your insight on this matter. It is definitely something worth exploring when this issue once again goes to court. (Notice I didn't say "If"...) It would seem that these practices do fall under the "C&T" heading, but I do see that "securing" them legally would be problematic, especially this late in the game. Had this point been pondered prior to the lawsuit that created the CD, it may have had a chance to be enacted. These days, I have my doubts. It would seem that "Establishment" may exist today, by your descriptions, and the fact that ROW's exist in the guise of "Interdunal" roads that are located for the most part West of the dune lines, with many of these roads being decades old. The beach itself could also be considered an ROW, in many places.

I do consider this to be useful information against what we face in CHNSRA, as we need every legal loophole out there to help keep access. I plan to get this information in front of those who can make the best use of it, and see what they think. Thank you both again for your excellent descriptions of how a similar issue played out in far-away Alaska, and how it can possibly work in Cape Hatteras. I think I understand it well enough now to attempt to pass it along. Warning, some plaregism of your posts may be necessary! I hope you don't mind...

Thanks again!

dap

We are for protecting the wildlife and Habitat, because we are apart of it and want to continue to be a part of it. That is why the ORV groups do beach sweeps,not environmental groups. It is ORV groups offering the reward for vandelized bird closures,not the enviromental groups, they're too busy looking for the next law suit . If the Environs used common sense they would not waste their time and our money sueing to close areas that are dangerous to wildlife itself and concentrate on habitat that produces much greater results. Example, Cape Point is well known for it's frequent overwashes and predation. Why do environs want birds to nest where they are more likely to be washed away or ate ? It's already happened in 2008, the forced concent decree did not protect the birds from mother nature. As it did not protect the turtle nest from T.S. Hanna, record number nests (all over the east coast not just on CHNS) and all that had not hatched drowned. One fact environs leave out is that it is storms and predation that cause 100% of the pipping plover fatalities on the CHNS,not people or ORVs.
The environs also leave out of their bird count the thousands of birds that have voted with their wings to nest on dredge islands on the sound side of Hatteras and Ocracoke instead of CHNS, which is a few hundred yards away, I say again, these birds that they claim is in decline nest by the thousands just a few hundred yards from the Park. The very islands the environs sued to keep from having them built, these island are perfect habitat,little predation and protected by the main islands from storm surges, they have produced astonishing numbers recorded by the NCFW. The Environs claim that since the birds are not nesting on the park,they do not count. Doe's this answer sound like it is coming from someone negociating in good faith ??? No it does not ,they know it is not people or ORVS causing a so called decline on CHNS, but rather storms and predators,but they can't make any money sueing nature or God, or the state for making dredged islands.
The pipping plover will soon be taken of the Endangered Species list as threatened, what will they use as a poster child then ? The fact is it is not about protecting birds , it's about making a wildlife reserve for them to enjoy just themselves to watch birds dancing and doing the dirty. Well there's 13 miles of Pea Island Wildlife Reserve just a few miles away, got there and enjoy nature how you see fit, we want to fish and swim, what CONGRESS PROMISED WE COULD DO !

Jesse,

Welcome to the debate! I thought this one had run it's course.

Your comments are totally correct. NCFWS keeps tabs on the dredge islands in the inlet, and also the "Bird Islands" that are just WNW of North Frisco/South Buxton. These bars are literally covered with birds, and their sheer size make islands like Cora June, (Dredge), look small by comparison. As you stated, these islands are mammalian-predator free with the only predation occuring from other bird species such as gulls, and are protected from ocean overwash. I'd be all for creating a chain of them behind the barrier islands and let the birds and the AS have it all! But wait... Then they coudn't drive out in their own ORV's to do some bird watching...

I have a fiscally sound plan that would take the burden off the American taxpayer and the fed's in these cases:

If an ECO wins a lawsuit against the NPS, make THEM foot the bill for all the changes that must be implemented.

You would see the lawsuits stop instantly.

dap

One should read the minutes of the case that resulted in the Consent Decree. Judge Doyle threaten to close the beaches entirely unless all the parties involved agree to his decree. I don't call that arbitration, I call it extortion. Judge Doyle should be impeached!